Proposal would remove marital exception for rape

Originally published January 29, 2013 at 1:46 pm

Updated January 30, 2013 at 7:22 am

Washington is one a handful of states where marriage remains an absolute defense against allegations of some forms of rape and sexual assault, and lawmakers considered a proposal Tuesday that would change that.

Washington is one a handful of states where marriage remains an absolute defense against allegations of some forms of rape and sexual assault, and lawmakers considered a proposal Tuesday that would change that.

House Bill 1108 would remove the spousal exemption from both rape in the third degree – in which no physical force is used – and from taking indecent liberties.

“There is no such thing as legitimate rape,” said Rep. Roger Goodman, D-Kirkland. “We have to get rid of this marital rape exception and catch up with the rest of the country.”

Until the 1970s, most states considered marriage to preclude any form of rape. Washington removed the marital exemption for first- and second-degree rape in 1983. Over the past four decades, most other states, including all others in the Pacific Northwest, have removed the marital exception for all forms of rape.

Prosecutors and domestic violence groups testified in favor of the change in Washington state, which they said is long overdue.

Prosecutors have said that the current law has forced them to pursue lesser, misdemeanor assault charges in cases involving married couples that would otherwise qualify as third-degree rape.

Seattle-based criminal defense attorney Brad Meryhew said he has no objection to removing the marital exception for rape in the third degree but has concerns about doing so for indecent liberties.

Because a sleeping person is by law considered to be physically helpless, he said, touching your spouse while he or she is asleep could under the measure be interpreted as a class B felony, punishable by up to 10 years in prison and a $20,000 fine.

“We want to be careful about unintended consequences,” said Meryhew. “We don’t want to turn the marriage bed into a crime scene because I reach over and touch my husband’s butt.”

Goodman, the bill’s sponsor, said he was open to amending the bill to address Meryhew’s concerns, but said they struck him as “a little theoretical.”

Goodman said he is “pretty confident” that the measure will pass out of the Legislature and make it to Gov. Jay Inslee’s desk, adding that he is fully committed to championing it.

“I will do everything I can to make sure that we get rid of the marital rape exception in Washington,” Goodman said.